ICO to vet Welsh broadband dispute

A decision by the Welsh Assembly Government (WAG) to not release the test methodology and raw test data for the £425m Superfast Cymru broadband project has been referred to the Information Commissioner’s Office.

The complaint stems from a claim by a junior minister that the project had led to more than 100,000 premises being connected at an “average speed of 61Mbps”. It is part of long-running scepticism that the contract will deliver what the WAG has claimed it will, and now subject to audit.

The claim, by deputy minister for skills & technology Ken Skates, was challenged by broadband consultant Richard Brown. Using the Freedom of Information Act, Brown asked the WAG to supply the methodology and the raw test data on which Skates based the claim.

The WAG refused, saying the information would be published at a later date. Brown asked for a review of the WAG’s decision.

Rob Hunter, director of finance and performance in the department of economy science and transport, again refused Brown’s request. He referred to the earlier reason for non-disclosure and added that the information, together with an explanatory narrative, will be published, “probably in summer”, together with a ministerial announcement.

“I am of the opinion that publicly releasing the raw material at this time, without the explanatory narrative and accompanying explanatory ministerial announcement, would cause disruption to the Welsh government’s pre-set programme and the ministerial process in relation to this work in that the raw information, if released prematurely, may be misconstrued and re-published by some, or extracts of the information re-published, in such an ambiguous way as to cause confusion amongst the public and cause disruption to the effective conduct of public affairs.

“To that end, I do not think it is reasonable in all the circumstances or in the public interest to release this information prematurely. Rather, I believe the public interest would be best served if the information were released alongside the ministerial announcement and consultation participation report so that the public can review the information in context. I am satisfied therefore that the balance of the public interest falls in favour of withholding the information.”

In his complaint to the ICO, Brown said, “It does not serve the public interest that a junior minister can make claims in a press release (that is subsequently printed in the press), [but] that the information for testing those claims is withheld until a later date.

“I have been separately informed that the test data is not formed in the manner that has been described, in so much as that the 100,000 connections are not live connections (as described by the junior minister in his release), but are (in the majority) simply theoretical tests that have taken place to establish the possibility of these connections and their speeds.

“Such theoretical connections belies the claim made by the junior minister that the connections are ‘live’ with an average speed of 61Mbps. As such the public interest is in fact damaged due to the claim likely being both false and misleading. The determination to publish the data at a later date, simply moves the ‘proof’ to a later date in an effort to minimise its relevance in informing the public interest.”

Brown noted that WAG had waited until the last possible day to reply to him. “I am of the opinion that this is contrary to the spirit of the act, and is contrary to the commissioner’s guidance, and furthermore is a deliberate attempt to prevent access to information that would be appropriate to informing the public interest.”

In support of his complaint Brown claimed that Hunter’s statement that premature publication could confuse the public was “simply without merit”.

He said, “If this were indeed the case, then a programmed press release by the junior minister would not be possible for precisely the reasons given for not substantiating the claim made by the same junior minister. Further, had the junior minister not made such a wildly unsubstantiated claim in the press, the public interest would not need ‘early’ access to the data to test the claim made.”

Brown believes that Skates’ claims cannot be upheld using the withheld data. The denial on the grounds of future publishing and the unnecessary use of the total time allowance for responses were an attempt “to obfuscate the correct and appropriate informing of the public interest” rather than trying to preserve such public interest as Hunter claimed.

“The commissioner will be aware that such actions are contrary to the act and the deliberate attempt to prevent the legitimate release of information that informs the public interest remains an offence under the act,” Brown said.

Auditor General seeks value in £425m Welsh broadband projects

The Auditor General for Wales has begun a review of Superfast Cymru, the Welsh government’s £425m investment (half from BT) in high speed broadband infrastructure, seeking value for money.

He has postponed a study of public sector broadband aggregation (PSBA) in favour of the value for money review, which is due out by the end of the year.

The study will try to answer three questions:

• Does the Welsh government have a coherent strategy for investing in high speed broadband infrastructure in Wales?
• Does the Welsh government have robust contractual arrangements for Superfast Cymru?
• Are the Welsh government’s high speed broadband programmes likely to achieve the intended benefits?

In scope is the effectiveness of the government’s strategy and targets; the programme’s financial planning and governance; the contractual arrangements with BT; the procurement processes, risk management arrangements, and the monitoring and evaluation of the contract.

Not in scope is the propriety of having BT staff represent the Welsh government’s fund-raising effort in Europe, says Rachel Moss, head of communications at the Auditor General’s office.

The question of a possible conflict of interest in having Ann Beynon, BT director of Wales, sit on the European Programmes Partnership Forum in the Welsh European Funding Office was questioned in March 2013. £90m of the money for Superfast Cymru comes from the European Regional Development Fund (ERDF.)

At the time the Audit Office said, “We need to establish the risks arising from any real or perceived conflicts of interest, how they have been managed and the extent to which appropriate declarations of interest have been made.”

The value for money review follows the National Audit Office’s scathing review of the UK government’s next generation broadband programme overseen by Broadband Delivery UK (BDUK). The NAO said there was no clear way to assess whether taxpayers would see value for money, and the £1.2bn they were giving BT would strengthen BT’s monopoly.

The review also follows a damning critique of the Superfast Cymru contract with BT by broadband consultant Richard Brown. “BT will deliver exactly what it contracted for, which is 95% of homes passed,” he said.

BT’s local network subsidiary Openreach is expected to lay 17,500km optical fibre and install around 3,000 new fibre broadband cabinets in parts of the country not covered by BT’s commercial plans. The government hopes to cover 96 per cent of the population.

Asked why the study is being done now, despite criticism of the project and its process before the contract was awarded, Moss said, “It would have been premature to carry out a review of this nature before the contract was signed – this would be straying into policy decisions which are not matters for the Auditor General, and limited evidence would have been available on the likelihood of the project delivering its intended benefits. The current timing of the study allows for a broader examination of the likely impact of the Welsh Government’s investment in broadband infrastructure.

Part of the report will compare the Welsh project with that of England. “The NAO’s work in England and that of the Public Accounts Committee (PAC) is certainly helpful in enabling us to compare the situation in England with Wales and this will be reflected in the final report,” Moss said.

The PAC has said it will recall BT a second time because it is unhappy with BT’s answers to its questions at two earlier hearings to discuss the NAO’s findings.

The Welsh Auditor General will survey around 1000 businesses and households in Blaenau Gwent and Gwynedd, the two areas where there has been “significant progress”, to see what difference access to BT’s Infinity product is making.

The general public can also recount their experiences of the Superfast Cymru programme by emailing broadband.study@wao.gov.uk. The auditors will not able to take up any complaints about BT or other broadband service providers and may not be able to reply to individual correspondence, the Auditor General’s office warned.

Note: Brown has submitted a Freedom of Information request for the test data and methodology that led the Welsh deputy minister for skills and technology Ken Skates to associate himself with press claims that over 100,000 premises are now able to access fast fibre broadband as a result of Superfast Cymru.

“The houses have been tested and verified as being able to receive superfast speeds. The average download speed of 61 Mbps is also more than double the contractual minimum for the programme,” the News Wales web site said.

It then went on to quote Skates as saying, “The fact that where premises are already benefiting as a result of the programme, with an average speed three times the UK average, shows the positive impact it is having as roll-out continues.”

Broadband talk sparks questions over BSG lobby role

Richard Brown, who last week gave a presentation on “superfast broadband in Wales” to the Mid-Wales branch of the British Computer Society, was invited to provide a report-back on the meeting. He writes:

A little while ago, one of the Chartered Institute of IT (BCS) members got in touch, after he had spotted some of my comments in your blog. He got in touch to ask whether I would consider doing a presentation to members, about broadband in the UK and more particularly expand on the area of superfast broadband and public funding to deliver it.

Obviously I was pleased to be invited, but talking for around an hour about any subject is rarely easy – particularly when the audience is likely to be far more knowledgeable about how the tech works than I could hope to be. The thing is – they (the institute) didn’t want to increase their knowledge about the tech – they wanted to understand why the relatively large sums of money didn’t seem to be making any difference to the outcome.Wales is still wholly underserved for broadband, and mobile communications.

I took the BSG report as my inspiration for two reasons:

1. I think that the assertion that the median requirement for broadband in 2023 at 19Mbps is more a self serving announcement for the members of Broadband Stakeholders Group (BSG) than a true reflection of the likely growth and potential for fast communications
2. 19Mbps as a median suggest many need much less, but the report clearly states that only 1% would require 35Mbps-49Mbps in the same year

BDUK was originally set up to fund the ‘gap’ between the commercial rollout of the major ISPs (primarily BT) and those that would appear to never be able to receive superfast (24Mbps+) broadband.

I think that BDUK is failing, and BSG being a primary lobbyist to Westminster is part of the problem.

At the point that it became clear that my presentation had attracted the attention of (Public Accounts Committee chairman) Margaret Hodges’ office, (BT’s NGA MD) Bill Murphy’s interest was predictably high.  He seemed overly desperate to make sure that I ‘told’ Margaret Hodges that 100k premises in Wales could now benefit from superfast broadband because of the BT/Welsh ministers’ contract.

I’ve made my opinion of that quite clear in the presentation – and trust that both Bill and Margaret have been able to hear me clearly state the same.

1250 views of the presentation have accumulated since I added audio (BCS tech failed to record the presentation on the night), which is around the same number of views that the 25 most recent presentation BCS have on their YouTube feed have accumulated in total.  I think this demonstrates how important this issue is, and just how serious a sage institution such as the Chartered Institute of IT take this issue.

There were live examples of properties that had been passed by and are included in the premises passed figures (probably as bad a measure as Up To for broadband download speeds), and utter confusion (and a little irritation) that the Welsh ministers refused to be open about what the contract they have signed is likely to deliver.

The focus on the Welsh government failing to deliver on public promises was to be expected, as most of the attendees are Welsh residents – but, I did make an effort to point out that Wales is not unique in it’s failings.

I have been asked outright if I would consider setting up a public broadband interest group, along similar a vein to the NRA for gun users in the US.  I am not sure that the two are necessarily analogous in anything other than the potential threat to a group of the public who have no collective voice.

I am not even sure how I would go about funding something like that. I am seriously considering it though – we desperately need a counter lobby to BSG, which is  not serving the public well.

Do I think the future of broadband communications in the UK is bright? Not particularly – that is why I think that it might be time to bring the public together with a single voice.

Richard

Serious questions raised over Welsh superfast broadband project

The contract for ‘superfast broadband’ that the Welsh Assembly Government (WAG) has signed with BT will deliver less than politicians have promised in public statements, and appears to deal with BT and Openreach as a single entity in violation of a BT regulatory undertaking to “functionally separate” the two.

It also raises questions about the legitimacy of the money given to BT because of how it will be used.

These conclusions come from broadband consultant Richard Brown who has already asked the European Parliament whether the WAG can use SuperFast Cymru money to overbuild the FibreSpeed coverage area which has already received state aid.

Brown obtained a heavily redacted copy of the ‘Superfast-Cymru‘ contract after an eight month battle using the Freedom of Information Act (FOIA). He says the financial, coverage and timing details of the contract are missing, but what remans is still revealing.

He notes that while the contract is between BT Plc and the WAG, it is signed on behalf of BT by outgoing Openreach CEO Liv Garfield.

“There is a legal governance issue (imposed in theory by Ofcom) that each part of the BT group should have ‘Chinese walls’ between them to prevent unfair exposure to competitive information leaking from one wholly owned subsidiary to another,” Brown says.

“There is a fundamental concern that if Openreach is supposed to be a functionally separate organisation, and the CEO of Openreach is the signatory to the contract then information must (by definition) be being passed between Plc and Openreach, in a manner that has been expressly forbidden by the legal undertakings given to Ofcom.”

Brown says WAG ministers are guilty of overpromising in public what the contract will deliver in terms of speed.Ofcom has accepted the European Commission’s definition of “superfast” to mean download speeds of at least 30Mbps.

“The Welsh Government have not contracted BT to enable the delivery of superfast broadband to premises in Wales, simply that the core infrastructure (exchanges and cabinets) will enable a measurement of premises passed to reach a total of 95% for up to 24Mbps speeds,” he says.

This view is confirmed in Clause 21.4 of the contract: “The Grantee acknowledges that the Welsh Ministers will not pay any contribution or subsidy to the Grantee in respect of the Last Drop Connection” ie, the link between the street cabinet and the premises. This rules out WAG support for any fibre to the premises.

The contract commits BT to meet three targets by 30 June 2016 or at the latest by the ‘Drop Dead Date’, which has been redacted:

1. 90% coverage of all premises in the ‘intervention area’ at >30Mbps PPiR and a minimum of 2Mbps CIR (committed information rate)
2. 95% at >24Mbps with a minimum of 0.5Mbps CIR
3. 40% coverage with >100Mbps with a minimum of 10Mbps CIR.

Brown says Target 2 is dismaying. “At no stage have the ministers ever claimed anything lower than 96% coverage for superfast broadband under this contract. It is clear that there is a degree of wishful thinking by the ministers that BT will choose to deliver more than they are contracted to do.”

Brown estimates 30,000 homes and businesses may be disappointed if BT fails to meet the 96% coverage target claimed by ministers. No-one knows who they might be because the post codes of the coverage area are secret.

Brown further believes there is a difference between what the WAG told the European Commission it wanted state aid permission for, and what it is buying from BT. The European Commission’s 2005 decision on state aid in the case of UK’s Rural Broadband Access Programme made it clear that only capital costs are eligible for state aid.

It said “Eligible capital costs such as investments in communications networks and equipment necessary to provide the requested broadband services have to be directly attributable to the project and incurred during the period of the Broadband Service Agreement. No operating costs will be financed.”

According to Brown, the works that are required under that contract appear to enforce requirements on BT that are explicitly not being paid for.

The Superfast Cymru contract requires BT to supply “Operational Works” that consist of maintenance and wholesale services and the sales and support of wholesale services.

Maintenance covers “updating, maintenance, fault management, performance optimisation (when required) and capacity augmentation.” Wholesale services covers “services to enable retail service providers to provide retail services over the network.”

“The inclusion of the clauses compelling BT to deliver such ‘value added’ services, as opposed to them being part of the funded delivery, lends weight to the likelihood that the ministers have assisted BT in being as tax efficient as possible,” Brown says.

Brown believes taxpayers will have to pay BT’s costs to sell them broadband. Clause 16.6 states “…The Welsh Ministers shall only pay Financial Contributions in respect of those marketing activities that the Welsh Ministers have approved in accordance with the Marketing Plan.”

This clause is wholly inappropriate, says Brown. He says Page 4 Section B makes it clear that the grant is a capital grant to BT on the grounds that infrastructure is being purchased.

“Such a commitment by the Welsh Government gives BT a disproportionate market advantage over other wholesale providers, and as such would be considered a significant influence into the market dynamics.”

Brown questions how much money BT will actually contribute to the Superfast Cymru project. The contract caps The WAG’s contribution at £195m. He notes BT has indicated its total investment in Welsh broadband, including its commercial rollout, is £220m. At Clause 21.5 the ministers “acknowledge and accept that the Grantee has made a contribution of a sum at least equal to the Maximum Grant.” That suggests BT’s extra contribution to Superfast Cymru is just £25m.

On the question of VAT, at Clause 21.11 WAG and BT agree between themselves the the contract does not cover payment in consideration of services to the ministers and that the deal is therefore exempt from VAT.

“BT are compelled to deliver wholesale services as a result of this contract (even to the extent that the Ministers have chosen to engage in price manipulation in the market space). Wholesale service provision as a requirement of the contract, does not allow for the contract to be considered as a ‘capital investment’ only contract,” says Brown.

Summing up Brown says the 96% coverage ministers claim will be delivered “does not represent a percentage of homes and businesses that will receive superfast broadband/fibre broadband. The measurement is solely on premises passed. Premises passed is a measurement of presumed capability that considers only the core infrastructure.

“This utterly ignores the capability of the line between the exchange/cabinet and the premise to deliver the faster services.”

Brown referred to the Aus$24bn Australian National Broadband Network, which also used premises passed, and which the head of BT’s NGA rollout Bill Murphy has branded a failure on Twitter.

Brown says “In August the industry press was awash with headlines … which suggest that there are approx. one third of all the (Australian) premises passed that are unable to gain access to the increased service speeds.

“Premises passed is simply not a measure of the amount of the population that will be able to gain access to improved services. It is simply a measure of the capability of the core network – something that will not change Wales’ future, but will certainly enhance BT’s.”

Welsh government explores ways to pay BT to overbuild £30m state-aided network

The Welsh Assembly Goverment (WAG) is looking for ways to allow its state-aided BT-supplied £425m Superfast Cymru project overbuild the 14 North Wales business parks served by the FibreSpeed wholesale network. If a way is found, taxpayers will be paying twice to provide high speed broadband to the area.

FibreSpeed’s physical infrastructure is owned by the WAG, but supplied and operated under a 15 year contract by FibreSpeed, a Geo Networks subsidiary. The business parks and industrial estates on the FibreSpeed network were excluded from the Superfast Cymru plan because they overlapped.

In a letter to Assembly Members, economy, science and transport minister Edwina Hart said a change in the guidelines governing state aid for broadband may allow the overbuild.

“I have commissioned a technical and legal review to consider whether it is possible to provide support for Superfast Cymru in locations already served by FibreSpeed. I hope to provide an update on this shortly,” she wrote on 12 November.

The European Commission gave permission in February 2006 for the WAG to use state aid to commission FibreSpeed. At the time BT’s prices were 2.7 to 7.2 times more expensive than London for the same service (see Note below). This was more than local businesses could afford, the WAG said.

“The EU regulations on state aid for broadband which applied at that time were interpreted as meaning that Superfast Cymru could not be supported in addition to FibreSpeed in those areas directly covered by the State Aid notified FibreSpeed footprint,” Hart wrote.

The WAG earlier refused to allow FibreSpeed to increase its footprint, and refused to answers questions about why it allowed part of it to lay unlit. A Freedom of Information request revealed 126 businesses were using FibreSpeed in June 2011 .

She noted that a number of ISPs are using FibreSpeed links to backhaul wireless broadband connections to homes and businesses across north Wales.

“Many of these ISPs’ customers have benefited from the Broadband Support Scheme to cover the cost of their connection. The beneficiaries of the Broadband Support Scheme aid are the end users, not FibreSpeed nor the retail ISP, so there is not a State Aid issue for these telecoms organisations as a result of the scheme.”

However, Hart allowed ISPs to be paid directly after confusion over who should get the up to £1,000/home subsidy.

Note: The WAG used a BT quotation dated July 2005 for fibre-based services to a site in North Wales to support its claim that the costs were prohibitive.

Symmetrical connection	Installation fee	Annual rental
10 Mbits/s	£7,000	£34,500
34 Mbit/s	£25,000	£94,000
100 Mbits/s	£25,000	£168,300

Source: European Commission 22 February 2006

BT changes cut off Welsh ISPs from ABC grants

Changes in the status of BT exchanges that coincided with the launch of the Welsh Assembly Government’s  (WAG) Access Broadband Cymru (ABC) programme may stop BT’s competitors from accessing grant money of up to £1000 per home.

Stakeholders are meeting the WAG today in Cardiff to discuss the ABC, Richard Brown of Wispa reports. “Basically, it’s a ra-ra session for the scheme and an attempt to keep the smaller ISPs onside whilst BT solves the problems of Wales en route to delivering 95%+ superfast coverage,” he says.

The ABC scheme, which kicked off on 1 October,  contributes up to £1000 per premises to home owners and SMEs who may miss out on the £425m joint WAG-BT Superfast Cymru programme or where its roll-out has not yet started.

It appears that, just as ABC went live, BT changed all the UE (under evaluation) exchanges to FE (future exchanges). “Under ABC, FE exchanges do not qualify for grant… two days ago those exchanges did qualify,” Brown says.

What a difference a day makes.

The timing looks suspicious when one looks at the map. Brown points out the dotted line on the map is the border between Wales and England.

“All the ones on the Welsh side now mysteriously don’t qualify for support from the Welsh government. This is simply an extension of BT announcing that they are ‘coming soon’ when a small ISP announces an installation in an area – much like they tried to do to B4RN,” Brown says.

“This is a nonsense. Someone – anyone – but someone, has to start taking this seriously.

• BT is being paid handsomely to promise to deliver.
• The contracts are secret.
• The delivery mechanisms and roll-out plans are secret.
• No one is allowed to scrutinise anything – but we all have to shut up and suck up the BT goodness…”

Brown earlier started a satirical website, SuperFarce Cymru, that mocked the WAG’s programme and earned him letters from BT’s lawyers that alleged he used copyright material without permission. It’s still there.

BDUK is holding a similar talk-fest on Monday 7 October to find out what plans would-be altnets have to provide the Final 10% with next generation broadband connections.

Not for the first time BDUK is unable or unwilling to provide videoconferencing, or even a webcast and phone-in facility. This would save hard-up farmers,  country pub owners and wanna-be altnet operators a long trip to London to attend and exploit the benefits of superfast broadband at the same time.

Oh, wait…

For an invitation email Andy Carter at bdukf10@culture.gsi.gov.uk or call him on 020 7211 6043. While you’re at it, ask him to webcast the meeting.

BT in gagging order to parody website

BT’s legal department has sent a ‘cease and desist’ letter to the satirical website superfarce-cymru.com, claiming it breaches BT copyright and giving it seven days to take down the allegedly offending material before it starts legal proceedings.

It accuses site owner Richard Brown of copying “a substantial amount” of the content of the superfast-wales.com website, including the design of the home page and BT’s logo, “which although blurred, is easily recognisable”.

Brown appears to aim as much at the Welsh Assembly Government as at BT’s marketing hype about superfast broadband.

In answer to the question “What’s Superfast Cymru all about?” the home page says, “If we can convince you that we are doing a decent job by claiming that this is a pioneering multimillion pound programme to bring nationwide superfast broadband, there’s a chance you’ll overlook the millions wasted on RIBS, Fibrespeed, PBSA, buying Cardiff airport etc and still vote us back in.”

BT is spending some £220m inWales, with most of it going towards Superfast Cymru. The WAG is contributing £58m, BDUK £57m. with £90m coming from the European Regional Development Fund (ERDF).

The default installation will be  fibre to the cabinet, which offers a nominal 80Mbps download and 20Mbps upload, but BT indicates it will also offer a 330Mbps download, 30Mbps fibre to the premises wholesale product. It aims to cover 96% of Welsh homes and businesses.

The Superfarce Cymru site reflects a sceptical view of the £425m roll out. “FTTC provides wholesale download speeds up to 80Mbps and upload speeds up to 20Mbps, so if you are a long way from the exchange or the cabinet, this won’t make any difference to the speed that you will be able to get. If you have a nice view or not very many neighbours, this won’t make any difference to the real speed you can get.”

Under the contract, the largest next generation broadband deal in the UK, BT says it will install 17,500km of optical fibre cable and around 3,000 new fibre-enabled street cabinets.

The first eight regions to benefit will be Bangor, Caernarfon, Dolgellau, Menai Bridge, Porthmadog, Pwllheli, Ebbw Vale and Tredegar.

WAG business minister Edwina Hart unveiled the first Superfast Cymru cabinet in Bangor in February.